Supreme Court of Canada to rule on privacy of work computers

OTTAWA — The Supreme Court of Canada will hand down what’s expected to be a landmark judgment Friday with potential implications for anyone who uses work-issued electronics for personal use.

Everybody who has a computer at work should care about this judgment, which could provide clarity to how much privacy someone surrenders when they use an employer-issued device, said Scott Hutchison, a Toronto Criminal lawyer and expert on search and seizure law.

“The reality is we all know, with the possible exception of ‘not suitable for work’ websites, that we all use our computers for all kinds of personal stuff. I don’t know anyone who doesn’t,” Hutchison said.

The top court will rule Friday on the case of Richard Cole, a Sudbury high school teacher who was charged in 2006 with possession of child pornography and unauthorized use of a computer after the school’s IT staff found sexually explicit photos of a grade 10 student on Cole’s work-issued laptop.

The lower courts have gone back and forth on whether or not the evidence in Cole’s case should be excluded and if his privacy rights were violated.

The case questions what the reasonable expectation of privacy is in the contents of a workplace computer, but the decision could apply to everything from smartphones to tablets, Hutchison said.

As people rely more and more on electronic devices for work purposes, and for personal use during work time, the rules surrounding these devices affect “just about everybody,” said law professor Michael Geist, who holds the Canada Research Chair in Internet and ecommerce Law at the University of Ottawa.

“Certainly, in a work environment, people are very often surprised to learn that the employer has pretty significant rights and controls over the kinds of things that they do on those devices,” Geist said.

“I guess we’ll have to see what the court has to say.”

Cole, who was a member of his school’s technology committee, had the authority to remotely access student computers connected to the network via his work-issued laptop, according to court documents.

“In the course of his supervisory duties,” Cole accessed a student’s email account, found nude pictures of a female student, and copied them to his laptop’s hard drive, the documents said.

A computer technician with the same administration rights as Cole found the folder on Cole’s laptop after accessing it remotely. Under the direction of the school’s principal, the technician copied the photos onto a disc. The principal ordered Cole to hand over his laptop.

A school board official then searched Cole’s computer and copied his Internet browsing history onto another disc. The files contained “a large amount of pornographic images,” according to court documents.

The principal and school board officials gave the laptop and the two discs to the police and Cole was arrested. The police searched those items without a warrant.

After finding that the failure to obtain warrants for any of the searches was an “egregious breach” of Cole’s Section 8 Charter rights, a trial judge decided in 2008 to exclude the laptop, the content of the hard drive, and the two discs from the evidence in his case. On appeal, the Superior Court of Justice overturned the decision and sent the case back for a retrial.

In 2011, the Ontario Court of Appeal set aside that decision, re-ordered most of the evidence to be excluded, and again sent the case back. In doing so, the appeal court also modified the expectation of privacy.

Because Cole was given permission to use the laptop when he wasn’t at work and to store personal information on it, he “had a reasonable expectation of privacy from state intrusion in the personal use of his work computer and in the contents of his personal files on its hard drive,” Justice Andromache Karakatsanis said in the 2011 decision.

But, while the police searches were a breach of Cole’s charter rights, the searches by school officials were not, the judge ruled. Karakatsanis allowed the school’s compact disc containing the student’s images to be included in the evidence.

The Crown appealed to the Supreme Court later that year and the case was heard in May, 2012.